Challenges to Wills and probate have increased dramatically over the past few years. There are several reasons for this, but the main two seem to be:

• The rise in house prices means estates are often larger than they were in previous generations. This means there is more to fight for.
• Dementia is increasing due to the ageing population, leading to more Wills being challenged on the issue of mental capacity.

Although the instances of contentious Wills and probate have increased, the challenge of successfully contesting a Will has not diminished. English courts still hold firm in the assumption that a Will is valid unless proven otherwise and a testator’s final wishes should be honoured except in exceptional circumstances.

Challenging a Will, therefore, requires advice and representation from an experienced Wills and probate solicitor. Any attempt to contest a Will without such support is almost guaranteed to end in disaster.

It is also important to consider the emotional cost of contesting a Will. You may be forced into confrontations with family members whom you love. This can be devastating, not only for relationships but to your long-term well-being. It is, therefore, crucial you discuss your options with an experienced solicitor before considering contesting a Will.

There may be other, less confrontational routes available to you such as negotiation. A good solicitor will also provide an honest opinion on your chances of success. With so much at stake, challenging a Will, if the action has little chance of succeeding, makes no sense financially or personally.

You must establish valid grounds for challenging a Will. The grounds available are:

Lack of testamentary capacity

With the prevalence of dementia increasing within the population, lack of mental capacity of the testator is now one of the most prevalent grounds by which Wills are challenged.

The test for testamentary capacity was established in Banks v Goodfellow. It was held that in order to be considered of ‘sound mind’, the testator must, when making the Will:

• Understand that they are making a Will
• Understand the effect of that Will
• Know the extent, nature and value of their estate
• Understand the consequences of including and excluding certain people in their Will
• Not be suffering from any “disorder of mind” which may affect their understanding

The Will was not executed correctly

With the increase in other organisations, such as charities, offering Will writing services there is an increased concern of Wills not being executed correctly. This is an important ground by which a Will can be challenged.

A valid Will must comply with section 9 of the Wills Act 1837. If it does not, it may be challenged on the grounds of “lack of due execution”.

Section 9 states:

No Will shall be valid unless—

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the Will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either—

(i) attests and signs the Will; or

(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

A drafting error

This follows on from the above ground. In particular instances where the Will is not drafted by a solicitor, there may be occasions where there is an error in the Will which is not picked up by the testator. The testator then signs it alongside their witnesses, believing what is written is exactly that which they intended.

If you believe a drafting error has resulted in you suffering a loss as a potential beneficiary under a Will, you can apply for the document to be amended within six months of the date of the grant of probate. The court will require clear evidence of either a typographical error or a failure of the drafter to properly understand the testator’s instructions.

If the wording of the Will is unclear or ambiguous, you may apply to the court to have its meaning construed. In the 2014 case of Marley v Rawlings, the Supreme Court stated that the same method would be used when interpreting the wording of a Will as in interpreting a contract. The court will view the Will as a whole, with the context giving meaning to what is meant by the overall document.

Undue influence

Alongside lack of testamentary capacity, this is another common reason for contesting a Will.

Undue influence is deemed to have occurred when the testator is coerced, intimidated, manipulated or deceived into creating a Will that they would not have adhered to, had the undue influence not occurred.

The court sets a high bar when deciding whether undue influence has occurred. Emotional appeals, such as “if you loved me you would leave me the family home” are not enough. In the 1920 case of Craig v Lamoureux the court stated: “[It is] not enough to show that someone has the power unduly to overbear the will of the testator. It must be shown in the particular case the power was exercised and that it was, by means of that power, that the will was obtained”.

To prove undue influence, you need to prove the testators felt they have no choice but to create the Will they did, and their free will was obliterated by the influencer. The court will consider the age and strength of the testator when deciding whether undue influence occurred.

In Edwards v Edwards [2007] the court put the test succinctly as:

“it is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis.”

The testator does not understand the contents of the Will

For a Will to be valid, the testator must understand its content. If they are cannot read or write, or suffer from visual impairment, it must be proved that they fully understood the depositions they were making.

The emotions involved in contested Will disputes can run to volatile levels, especially in cases involving ‘deathbed’ Wills and step-families.

Obtaining quality legal advice from the outset can assist families to resolve contentious Will matters outside of the courtroom. If litigation is the only way forward, robust, knowledgeable representation will give you the best chance of succeeding in your claim.

Saracens Solicitors is a multi-service law firm based in London’s West End. We have dedicated and highly experienced civil litigation solicitors who can advise you on all contentious Wills and probate matters. For more information, please call our office on 020 3588 3500.

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